Patterson v. Wawanesa Insurance, 2025 CanLII 49197

Citation: Patterson v. Wawanesa Insurance, 2025 ONLAT 23-009396/AABS

Licence Appeal Tribunal File Number: 23-009396/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Patrick Patterson

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Rakesh Sharma, Counsel

For the Respondent: James Schmidt, Counsel

HEARD: By way of written submission

OVERVIEW

1Patrick Patterson, the applicant, was involved in an automobile accident on June 20, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $4,309.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“OCF-18”) dated October 7, 2022?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in an OCF-18 dated July 4, 2022?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s injuries fall within the MIG.

4As the applicant remains within the MIG, it is not necessary to consider whether the treatment plans in dispute are reasonable and necessary.

5The treatment plans are not payable pursuant to s. 38.

6The respondent is not liable to pay an award.

7As there are no overdue benefit payments, there is no interest owing.

ANALYSIS

The Minor Injury Guideline

8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

9An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

10The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. In this instance, the applicant submits he suffers from chronic pain with a functional impairment and a psychological condition to warrant his removal from MIG.

11The respondent argues that the applicant has not met the burden of proof that he suffers from chronic pain with a functional impairment or a psychological condition to warrant removal from MIG.

a) The applicant does not suffer from chronic pain with a functional impairment.

12The applicant has not proven on a balance of probabilities that he has chronic pain with a functional impairment that warrants removal from the MIG.

13The applicant argues that he suffers from chronic pain as a result of the subject accident. The applicant relies on the clinical notes and records (“CNRs”) of Dr. Chiu, his family doctor; a pre-screening report by Dr. Naisi, psychologist, from June 30, 2022; and an OCF-18 by Dr. Afifi, physiotherapist, from August 18, 2022.

14I find that the CNRs of Dr. Chiu do not support the applicant’s claim of chronic pain with a functional impairment. The CNRs show the applicant reported some pain in his lower back and neck, but beyond the initial report of the accident, the pain reporting is not tied to the subject accident. Additionally, there is no evidence of any functional impairment in the CNRs. The applicant reports he is still going to the gym and going on deer hunting trips in Nova Scotia.

15I place little weight on the pre-screening report by Dr. Naisi. The report did not address any reports of pain or functional impairment as a result of the subject accident.

16I also placed little weight on the OCF-18 by Dr. Afifi. The OCF-18 is for the purpose of obtaining approval for physiotherapy servicesand not on the question of chronic pain with a functional impairment. Further, the OCF-18 is contradicted by the CNRs of Dr. Chiu. Specifically, the OCF-18 indicates that the applicant is “still having major difficulties at home and at work.” As noted above, the CNRs of Dr. Chiu do not indicate any functional issues experience by the applicant, or any issues with respect to activities of daily living. I gave more weight to the CNRs of Dr. Chiu, as he is the applicant’s family doctor and has more complete information regarding the applicant’s health.

17The respondent argues that the applicant has not provided compelling medical evidence to support the claim of chronic pain with a functional impairment. The respondent relies on an orthopaedic examination completed by Dr. Abuzgaya, on January 26, 2023.

18I find that the orthopaedic examination completed by Dr. Abuzgaya indicates that the does not have chronic pain with a functional impairment. Dr. Abuzgaya performed a physical examination that was unremarkable. The applicant reported that he did not miss any time from work as a result of the accident and that he had returned to all of his pre-accident activities. Dr. Abuzgaya concluded that based on the examination, there was no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the subject accident.

19In sum, I find on a balance of probabilities that the applicant does not have chronic pain with a functional impairment that warrants removal from the MIG. The CNRs of Dr. Chiu do not indicate the applicant has chronic pain or a functional impairment. Additionally, in the orthopaedic examination by Dr. Abuzgaya, the applicant reports that he did not take any time off work after the subject accident, and that he had returned to all pre-accident activities. Dr. Abuzgaya concluded there was no residual impairment attributable to the accident.

20I find that the applicant does not suffer from chronic pain with a functional impairment that warrants removal from the MIG.

b) The applicant does not suffer from psychological condition.

21The applicant has not proven on a balance of probabilities that he suffered from a psychological condition that warrants removal from the MIG.

22The applicant argues that he sustained a severe psychological impairment as a result of the subject accident. The applicant relies on a pre-screening report by Dr. Naisi; from June 30, 2022; and an OCF-18, by Dr. Afifi, physiotherapist, from August 18, 2022.

23Once again, I place little weight on the pre-screening report by Dr. Naisi. The doctor’s conclusion of a severe psychological impairment (adjustment disorder) is not supported by any compelling medical evidence. The list of symptoms listed in the pre-screening report are not supported by the applicant’s reporting to his family doctor, Dr. Chiu. The CNRs of Dr. Chiu do not show any complaints of major sleep issues, no issues of poor appetite, nor any weight loss. On the issue of weight loss, I note that the CNRs of Dr. Chiu dated May 23, 2023, indicate that Dr. Chiu recommended that the applicant lose weight.

24I also place little weight on the OCF-18 by Dr. Afifi for the reasons set out above and because it does not reference any psychological complaints by the applicant.

25I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition to warrant removal from MIG

26As the applicant has been found to remain in the MIG, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans.

Interest

27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefit payments are overdue, no interest is owing.

Award

28The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Provide the basis for the award. Identify the response. As no benefit payments were unreasonably withheld or delayed, the respondent is not liable to pay an award.

ORDER

29I find that:

i. The applicant remains in MIG.

ii. As the applicant remains in MIG, it it not necessary to consider if the treatment plans in dispute are reasonable and necessary.

iii. No interest is owing.

iv. The respondent is not liable to pay an award.

v. The application is dismissed.